DIGEST: Partners of one law firm
may form a second law firm bearing the same name in another
jurisdiction. A lawyer may be "of counsel" to one law
firm while an active name partner in another law firm. A law
partnership may retain in its firm name the name of a partner who
has retired from the partnership but remains "of
counsel" while actively practicing in a firm having the same
partners in another jurisdiction.

CODE: DRs 2-102(B), 2-102(D).

QUESTION

1. May the partners of a New York
law firm form a second firm bearing the same name in another
jurisdiction?

2. May someone be "of
counsel" to one firm while an active, name partner in
another law firm?

3. May a law partnership retain in
its firm name the name of a partner who has retired from the
partnership but remains of counsel while actively practicing in a
firm having the same partners in another jurisdiction?

OPINION

The law firm of A B & C (NY)
is a New York partnership whose firm name consists of the names
of three of its partners. One of these name partners,
"Partner C," resides in Washington, D.C. Partner C,
motivated by tax considerations, is considering
"retiring" from the partnership of A B & C (NY),
becoming "of counsel" to the firm, and becoming a
partner in a newly-formed partnership in Washington, D.C.
consisting of Partner C and all of the partners of A B & C
(NY) and called "A B & C (DC)".

It is not per se improper for
attorneys to be members of two partnerships, in two
jurisdictions, with overlapping memberships. N.Y. City 82-33;
N.Y. State 231 (1972); ABA Inf. 1253 (1972). Here, in particular,
there is no reason why the partners of the New York firm cannot
also be partners of the D.C. firm at the same time. Similarly, it
is possible, although not usual, for a lawyer to satisfy the
requirements to serve as both a partner in one firm and "of
counsel" to another. See N.Y. City 81-54 ("Only in
unusual circumstances may a lawyer properly be designated as a
partner in one law firm and 'of counsel' to another"); see
generally N.Y. City 1995-8; ABA 90-357 (lawyer must have
"close, regular, personal relationship" with a firm to
be "of counsel" to it); Philadelphia 89-19 (lawyer who
is a partner in one law firm also may be either a partner in or
"of counsel" to another law firm). This situation
appears to present the type of "unusual circumstances"
in which such a double designation would be permissible. It is
likely that Partner C's "continuing" relationship with
A B & C (NY) will be significantly more than merely nominal,
since A B & C (NY) and A B & C (DC) are likely to be
closely affiliated. If that is true, then Partner C could qualify
as "of counsel" to the New York firm while serving as a
partner in A B & C (DC).

Under DR 2-102(B), a lawyer may
not practice under a firm name that is misleading about the
identity of the lawyers practicing under such name. The partners
of A B & C (NY) may form a second law firm in another
jurisdiction bearing the same name, and Partner C's name may be
kept in the New York firm's name, only if those arrangements are
not intended to mislead the public and do not have that effect.
N.Y. City 82-33; N.Y. City 81-104. Based on the facts as
presented, the proposed naming will not be misleading.

The naming of A B & C (DC)
appears clearly accurate, since all three named partners will be
members of that firm. The New York firm should also be able to
keep Partner C's name, even though he is no longer a partner of
that firm, since Partner C will remain as counsel to A B & C
(NY). There is no requirement that a firm's name consist
exclusively of partners; a person's continuing "of
counsel" relationship with the firm is enough. DR 2-102(B)
("A lawyer in private practice shall not practice under... a
firm name containing names other than those of one or more of the
lawyers in the firm."); Nassau County 92-4 (firm name may
include name of withdrawing partner who continues to practice law
provided withdrawing partner maintains "of counsel"
relationship with firm).

In this respect, the proposed
arrangement represents a departure from the usual principle that
inclusion in a partnership's name of a partner who is not
"deceased" and who, although nominally
"retired," is still practicing law elsewhere, is likely
to violate DR 2-102(B) because the firm title may be
"misleading." N.Y. City 40 (1926) (including in firm
name lawyer who continues practice of law in another firm is
likely to mislead clients and others); Iowa 91-5 (law firm may
continue to use the name of a partner who is retiring from the
practice but will continue to visit the office on occasion and
offer advice to remaining lawyers, provided that the retiring
lawyer does not practice law in another firm or in sole
practice). Here, so long as Partner C continues to maintain a
close, regular, personal relationship with A B & C (NY), it
is unlikely that the public or the firm's clients will be misled
about the nature or scope of Partner C's position because A B
& C (NY) continues to include him in its name. See Nassau
County 91-22 (firm may continue use of retired partner's name so
long as public not misled, and letterhead clearly sets forth
professional status of lawyer).

If the firm and Partner C proceed
as proposed, attention should be paid to the requirements of DR
2-102(D) concerning firm letterhead and other permissible
listings. Separate letterheads for each firm would almost
certainly be required to prevent the appearance of a partnership
when none exists. See Nassau County 91-22.

In sum, A B & C (NY) may form
a second law firm in Washington, D.C. bearing the same name,
provided the arrangement is not intended to mislead the public
and does not have that effect. By virtue of the close affiliation
between A B & C (NY) and A B & C (DC), Partner C will
likely have a "continuing" relationship with A B &
C (NY), and therefore, may be "of counsel" to it while
serving as an active, name partner in A B & C (DC). Based
upon the likely close affiliation between the two partnerships
and the continuing relationship between Partner C and the New
York firm, A B & C (NY) may continue to use the name of
Partner C in its firm name, even though he is actively practicing
in A B & C (DC).

CONCLUSION

Subject to the caveats set forth
above, we answer the questions presented in the affirmative.